ims response to vermont cert petition dec 10

8/8/2019 IMS Response to Vermont Cert Petition Dec 10

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No. 10-779

IN THE

WILLIAM H.SORRELL ET AL.,

Petitioners,

v.

IMSHEALTH INC. ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF RESPONDENTS

IMS HEALTH INC., VERISPAN, LLC, AND

SOURCE HEALTHCARE ANALYTICS, INC.

Thomas R. JulinJamie Z. IsaniPatricia AcostaHUNTON &WILLIAMS LLP1111 Brickell AvenueSuite 2500Miami, FL 33131

Mark A. AshMCGUIRE WOODS LLP2600Two Hanover SquareRaleigh, NC 27601

Thomas C. GoldsteinCounsel of Record

Kevin R. AmerAKIN GUMP STRAUSS

HAUER &FELD LLP1333 New HampshireAvenue, N.W.

Washington, DC 20036(202) [email protected]

Robert B. Hemley

Matthew B. ByrneGRAVEL AND SHEA

76 St. Paul Street, 7th Fl.

Burlington, VT 05402


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QUESTION PRESENTED

Does the First Amendment allow the government

to freely permit the publication and use of

prescription-history information, but ban the use of

the identical information to promote prescription

drugs, in order to correct a supposed imbalance in

the marketplace for ideas, Vt. Acts No. 80, 1(4),

1(6) (2007)?


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ii

PARTIES TO THE PROCEEDINGPetitioners are William H. Sorrell, as Attorney

General of the State of Vermont; Jim Douglas, as

Governor of the State of Vermont; and Robert

Hofmann, as Secretary of the Agency of Human

Services of the State of Vermont.

Respondents are IMS Health Inc., Verispan,

LLC, and Source Healthcare Analytics, Inc.

Pharmaceutical Research and Manufacturers of

America was a plaintiff-appellant below and is

expected to appear separately as a respondent in this

Court.

RULE 29.6 DISCLOSURES

IMS Health Incorporated is wholly owned by

Healthcare Technology Intermediate Holdings, Inc.,

which is wholly owned by Healthcare Technology

Intermediate, Inc., which is wholly owned by

Healthcare Technology Holdings, Inc. Verispan LLC

was succeeded by merger by SDI Health LLC. SDIHealth LLC is wholly owned by SDI Health Holdings

LLC. Source Healthcare Analytics, Inc. is wholly

owned by Wolters Kluwer Health, Inc., which is

wholly owned by Wolters Kluwer N.V. No publicly

held company owns 10 percent or more of the stock of

any of these parties.


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TABLE OF CONTENTSQUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................ ii

RULE 29.6 DISCLOSURES ........................................ ii

TABLE OF CONTENTS ............................................ iii

TABLE OF AUTHORITIES ....................................... iv

STATEMENT OF THE CASE..................................... 1

ARGUMENT .............................................................. 10

I. The Second Circuit Correctly Concluded

That Vermonts Prescription Information

Law Violates the First Amendment. .......... 11

A. Vermonts Prescription Information

Law Is a Restriction of Protected

Speech. .................................................. 12

B. Vermonts Restriction on the

Transfer and Use of Prescriber

Information Does Not Advance a

Legitimate State Interest..................... 21C. Vermonts Law Is Not Narrowly

Tailored. ................................................ 24

II. Certiorari Is Nonetheless Warranted

Because the Ruling Below Directly

Conflicts with the Settled Precedent of

the First Circuit. .......................................... 27

III. This Case Is An Ideal Vehicle to Decide

the Question Presented, Which Is

Profoundly Important. ................................ 31

CONCLUSION .......................................................... 35


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iv

TABLE OF AUTHORITIES

Page(s)

CASES

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ............................................. 15

Board of Trustees of State University of New

York v. Fox,

492 U.S. 469 (1989) ............................................. 12

Buckley v. Valeo,

424 U.S. 1 (1976) ................................................. 22

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) ............................................. 12

Edenfield v. Fane,

507 U.S. 761 (1993) ....................................... 15, 22

Fed. Election Commn v. Massachusetts

Citizens for Life, Inc.,479 U.S. 238 (1986) ............................................. 22

Greater New Orleans Broad. Assn v. United

States,

527 U.S. 173 (1999) ............................................. 24

IMS Health Corp. v. Rowe,

532 F. Supp. 2d 153 (D. Me. 2007) ...................... 19

IMS Health Inc. v. Ayotte,

490 F. Supp. 2d 163 (D.N.H. 2007) ..................... 19


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v

IMS Health Inc. v. Ayotte,550 F.3d 42 (1st Cir. 2008) ...........................passim

IMS Health Inc. v. Mills,

616 F.3d 7 (1st Cir. 2010) ...........................8, 28, 29

LAPD v. United Reporting Publishing Corp.,

528 U.S. 32 (1999) ............................................... 20

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ....................................... 15, 16

Lowe v. SEC,

472 U.S. 181 (1985) ............................................. 13

McConnell v. Fed. Election Commn,

540 U.S. 93 (2003) ............................................... 22

Minneapolis Star & Tribune Co. v. Minnesota

Commr of Revenue,

460 U.S. 575 (1983) ............................................. 16

Riley v. Natl Fedn of the Blind of N.C., Inc.,

487 U.S. 781 (1988) ............................................. 12

Rubin v. Coors Brewing Co.,

514 U.S. 476 (1995) ............................................. 15

Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984) ............................................... 18

Thompson v. Western States Medical Center,

535 U.S. 357 (2002) ....................................... 15, 21

United States v. Stevens,130 S. Ct. 1577 (2010) ......................................... 29


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Virginia State Board of Pharmacy v. VirginiaConsumer Council, Inc.,

425 U.S. 748 (1976) ............................................. 13

STATUTES

15 U.S.C. 6802 ......................................................... 17

21 U.S.C. 332-337 ................................................ 4, 5

42 U.S.C. 1320d-6 ................................................... 17

47 U.S.C. 551(c)(1) .................................................. 17

Cal. Fin. Code 4052.5 .............................................. 18

D.C. Code 48-831.04 ................................................ 26

Fla. Stat. Ann. 465.025 ........................................... 26

Me. Rev. Stat. Ann. Title 22 1711-E(2-A) ........ 28, 32Me. Rev. Stat. Ann. Title 22 2697 .......................... 26Me. Rev. Stat. Ann. Title 22 2700-A ...................... 26

Minn. Stat. 151.461 ................................................ 26

N.H. Rev. Stat. Ann. 126-A:5, XVII .........................5N.H. Rev. Stat. Ann. 318:47-d ................................ 26N.H. Rev. Stat. Ann. 318:47-f ........................... 27, 31

Vt. Stat. Ann. Title 18 4622 .................................... 23

Vt. Stat. Ann. Title 18 4622(a)(1) .............................5


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vii

Vt. Stat. Ann. Title 18 4631 ............................passim

Vt. Stat. Ann. Title 18 4631(d) ............................. 5, 6Vt. Stat. Ann. Title 18 4631(e) ..................................6Vt. Stat. Ann. Title 18 4631(e)(1) ........................... 23Vt. Stat. Ann. Title 33 2005a .................................. 26

W. Va. Code Ann. 5-16C-9 ...................................... 26W. Va. Code Ann. 5-16C-9(a)(5) ............................ 5, 6

REGULATIONS

21 C.F.R. 202.1(e)(5) .................................................421 C.F.R. 202.1(e)(6) .................................................4

45 C.F.R. pt. 160 .................................................... 3, 19

45 C.F.R. pt. 164 .................................................... 3, 19

OTHERAUTHORITIES

American Medical Association,PDRP: The

Choice Is Yours .......................................................4

Ashlee Vance,Data Analysts Are Mesmerized

by the Power of Program R, N.Y. Times, Jan.

7, 2009 ................................................................... 33


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Amendment because the government cannot seek toinhibit truthful speech, obviously including speech

about important issues such as the efficacy of

prescription drugs. The court of appeals

acknowledged that its decision squarely conflicts with

the precedent of the First Circuit, which has upheld

similar statutes enacted by New Hampshire and

Maine.

1. Information relating to pharmaceutical

prescriptions has long been widely distributed and

used for numerous purposes. For example,

researchers use the information to identify overuse

of a pharmaceutical in specific populations, to

develop new drugs, and to facilitate identification of

potential patients to participate in clinical trials.

Pet. App. 7a. The government employs the data to

monitor usage of controlled substances and to

identify prescribers who need time-sensitive safety

information. Id. Pharmaceutical companies use the

same information to track disease progression, to aid

law enforcement, to implement risk-mitigation

programs, and to conduct clinical trials and post-marketing surveillance required by the United States

Food and Drug Administration (FDA). Id. 6a.

Prescription-history information is also used to

influence the sales of prescription drugs. It is

regularly employed to encourage the use of cheaper,

generic medications. Id. 7a. Specifically, insurance

companies and state governments use [the] data to

identify prescribers who make heavy use of brand-

name drugs for which there are generic alternatives.

Id. Insurance companies, in particular, use theinformation to manage formulary compliance

programs that require use of generic substitutes. Id.


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Conversely, brand-name pharmaceuticalcompanies use prescription-history information to

promote their drugs. The companies employ the data

to identify audiences for their marketing efforts, and

to focus marketing messages for individual

prescribers. Id. 6a. These marketing

communications often in the form of in-person

detailing visits go well beyond merely providing

pricing information. The companies instead direct

scientific and safety messages to physicians most in

need of that information, id., including the use, side

effects, and risks of drug interactions, id. Thisinformation is essential to prescribers, who must be

aware of the most current data related to

medications, including potential side effects and drug

interactions. For example, a drug company might

use prescription-history information to identify the

principal physicians in a region who treat certain

cardiological ailments in order to provide them with

information on the benefits of specific medications

designed to improve heart health. Alternatively, the

company may become aware of adverse side-effects of

certain medications and need to identify the

prescribers who are most in need of that safety

information. In turn, through detailing, the

companies learn from prescribers experiences with

various treatments and use that information to

improve their therapies. C.A. App. A 196 (Wharton).

2. Some states are hostile to pharmaceutical

detailing. Their concern is not patient privacy.

Federal and state law require that pharmacy

companies remove all patient-identifying information

before transferring prescription-history information.

See C.A. App. A 221 (Tierney); see generally 45 C.F.R.

pts. 160 & 164.


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Nor is there a significant concern that detailingintrudes on physicians practices. [P]rescribers are

free to decline meetings with detailers. Pet. App. 6a.

Further, an American Medical Association (AMA)

program permits prescribers to restrict

pharmaceutical sales representatives use of

information about their prescribing practices. See

generally American Medical Association, PDRP: The

Choice Is Yours, available at http://www.ama-

assn.org/ama1/pub/upload/mm/432/pdrp_brochure.pd

f (last visited Dec. 15, 2010).

Similarly, [t]here is no allegation that the

commercial speech regulated by [these laws] is either

misleading or related to an unlawful activity. Pet.

App. 21a. The federal government prohibits any drug

promotion that is false, misleading, or that lacks a

fair balance between information relating to side

effects and contra-indications and information

relating to effectiveness. 21 C.F.R. 202.1(e)(5)-(6).

See generally 21 U.S.C. 332-337. The Food and

Drug Administration has unparalleled enforcement

power under the statute, including injunctive andcriminal remedies. C.A. App. A 139, A 143 (Hutt).

Instead, opponents of detailing object to the

success of the messages conveyed by drug companies.

They maintain that promotion of brand-name drugs

increases the cost of health care and, in some

instances, leads to the use of therapies that are later

determined to present health risks.

States subscribing to that view have not sought

to prohibit detailing itself. Instead, they have

adopted two less-direct regulatory responses.

First, states have developed counter detailing


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programs, under which the government itself usesprescription-history data to identify and contact

prescribers to persuade them to choose less-expensive

(often, generic) medications. For example, Vermont

has adopted an evidence-based prescription drug

education program to utilize one-on-one

communications between the States representatives

and health care providers to encourage the

prescription of less expensive generic drugs. Vt. Stat.

Ann. tit. 18, 4622(a)(1). Among other functions, the

program notif[ies] prescribers about commonly used

brand-name drugs for which the patent has expiredwithin the last 12 months or will expire within the

next 12 months. Id. 4622(a)(2). See also, e.g., N.H.

Rev. Stat. Ann. 126-A:5, XVII; W. Va. Code 5-16C-

9(a)(5).

Second, some states have sought to inhibit

detailing by generally prohibiting the transfer of

prescription-history information for use in drug

marketing, as well as marketing on the basis of that

information. Vermonts statute is illustrative. It

provides:

A health insurer, a self-insured employer, an

electronic transmission intermediary, a

pharmacy, or other similar entity shall not sell,

license or exchange for value regulated records

containing prescriber-identifiable information,

nor permit the use of regulated records

containing prescriber-identifiable information for

marketing or promoting a prescription drug,

unless the prescriber consents as provided in

subsection (c) of this section. Vt. Stat. Ann. tit. 18, 4631(d). Further,

[p]harmaceutical manufacturers and pharmaceutical


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marketers shall not use prescriber-identifiableinformation for marketing or promoting a

prescription drug, absent the prescribers consent.

Id.

By its terms, the statute authorizes the use of

prescription-history information for any purpose

other than marketing, including specifically

pharmacy reimbursement; prescription drug

formulary compliance; patient care management;

utilization review by a health care professional, the

patients health insurer, or the agent of either; . . .

health care research; transmissions between

licensed pharmacies; and care management

educational communications. Id. 4631(e). Indeed,

recipients are perfectly free to publish the

information publicly.

The Vermont state legislature specified the

statutes purpose in a series of findings. The

legislature expressed concern that the marketplace

for ideas on medicine safety and effectiveness is

frequently one-sided in favor of drug companies. Vt.

Acts No. 80, 1(4) (2007). Believing that the

companies interests are often in conflict with the

goals of the state, id. 1(3), the legislature acted to

correct what it viewed as a massive imbalance in

information presented to doctors and other

prescribers, id. 1(6).

3. The Vermont statute gave rise to this lawsuit

filed by respondents against petitioners.

Respondents do not now challenge the States

counter-detailing program. Instead, they maintain

that the statutory provision permitting thedistribution and use of prescription-history

information except for use in marketing violates the


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First Amendment.Respondents IMS Health, Verispan, and Source

Healthcare Analytics (collectively, the Publisher

Respondents) are among the worlds largest

publishers of information, research, and analysis for

the health care and pharmaceutical industries. As is

relevant here, the Publisher Respondents collect and

analyze prescription-history information. The

reports prepared by the Publisher Respondents are

used for the many diverse purposes discussed above.

Respondent Pharmaceutical Research andManufacturers of America (PhRMA) is a trade

association representing brand-name pharmaceutical

companies. The Publisher Respondents produce

reports identifying, inter alia, the physicians who

regularly treat particular conditions or prescribe

specific prescription medications, as well as those

who have shown themselves to be most willing to

consider adopting new therapies. PhRMAs members

use those reports in their detailing efforts.

The district court held a five-day bench trial,during which the parties developed an extensive

factual record. Following the trial, the district court

issued an opinion and order upholding the laws

constitutionality. Pet. App. 68a-118a. Concluding

that Section 4631 is properly understood as a

regulation of commercial speech, the court held that

the law survives intermediate constitutional scrutiny.

Pet. App. 69a.

4. On respondents appeal, the Second Circuit

reversed. In so holding, the court expressly rejected

the precedent of the First Circuit, which previously

upheld similar New Hampshire and Maine statutes.


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IMS Health Inc. v. Mills, 616 F.3d 7 (1st Cir. 2010);IMS Health Inc. v. Ayotte, 550 F.3d 42 (1st Cir. 2008),

cert. denied, 129 S. Ct. 2864 (2009).

Preliminarily, the court of appeals held that

Section 4631 is a restriction on speech, not merely a

limitation on access to information. The court of

appeals reasoned that prescription-history

information is within the category of constitutionally

protected speech, which extends to [e]ven dry

information, devoid of advocacy, political relevance,

or artistic expression. Id. 14a (citation omitted).

The court reasoned that the statute cannot be

analogized to measures that protect individual

privacy for two reasons. It freely permits the

distribution of prescription-history information for

numerous purposes. Also, the avowed purpose of the

statute is to inhibit speech: detailing visits by

pharmaceutical companies. Id. 16a-17a.

The Second Circuit held that the Vermont statute

is invalid under even the lower intermediate

scrutiny that applies to regulations of commercial

speech. Pet. App. 20a. Vermonts asserted interest

in medical privacy, the court found, is too

speculative to qualify as a substantial state interest

because Vermont had not shown that detailing has

any effect on the integrity of the prescribing process

or the trust patients have in their doctors. Id. 23a.

Further, the statute does not directly advance

Vermonts interests in protecting public health and

reducing health care costs because it seeks to alter

prescribers behavior through the indirect route of

hampering detailers marketing messages. Thatapproach, the court concluded is too indirect to

survive intermediate scrutiny. Pet. App. 28a.


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Noting that Vermonts avowed purpose inrestricting pharmaceutical detailing is to make the

debate over prescription drugs less one-sided, the

Second Circuit held that under the First Amendment

Vermont is not free to put [its] thumb on the scales

of the marketplace of ideas in order to influence

conduct. Id. 25a. See also id. 28a ([T]he statute

restricts protected speech when uttered for purposes

the government does not approve of in order to

reduce the effectiveness of marketing campaigns and,

ultimately, alter the behavior of prescribers, who are

not regulated by the statute.).

Finally, the court of appeals held that Vermont

failed to demonstrate that its interests could not be

as well served by a more limited restriction on

speech. The statute applies to all brand name

prescription drugs, irrespective, for example, of

whether there is a generic alternative or whether an

individual drug is effective or ineffective. Id. 29a.

At the same time, there are alternative, less speech-

restrictive means, such as counter-detailing

programs, available to Vermont that are moredirectly targeted at encouraging the use of generic

drugs the state wishes to promote. Id. 33a.

Judge Livingston dissented. She would have

construed Section 4631 not as a speech restriction

but instead as a permissible restraint on publishers

and pharmaceutical companies right of access to

prescription information in the possession of

pharmacies. In her view, the publication of

prescription-history information does not sufficiently

advance[] the values served by the FirstAmendment to constitute protected speech. Id. 45a-

46a. In the alternative, Judge Livingstone would


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have upheld the statute as a permissible regulationof commercial speech. Id. 50a.

The State of Vermont subsequently sought

certiorari.

ARGUMENT

The Second Circuit correctly concluded that

Vermonts general prohibition on the publication and

use of prescription-history information to market

brand-name drugs violates the First Amendment.

Section 4631 restricts speech by limiting the

Publisher Respondents publication of reports on

prescribing practices. The State also directly bans

certain marketing communications, and does so with

the avowed purpose of shielding prescribers from

entirely truthful and non-misleading information and

messages. The government simply disagrees with

the informed choices physicians would make on the

basis of that information.

There is no merit to petitioners attempt to recast

Section 4631 as merely a regulation of access to

information. The statute is obviously not intended tocontrol the distribution of information in order to

preserve privacy, as it freely permits the distribution

and use of prescription-history information for any

person and for any purpose other than marketing.

The First Amendment does not permit the State

to adopt such a paternalistic regime, particularly in

the absence of evidence that the statute is necessary

and effective to further an important governmental

interest. The constitutional infirmity in the Vermont

scheme is significantly compounded by the fact thatthe State engages in viewpoint discrimination, as it

permits both the government and insurers to use the


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identical prescriber-history information in order toconvey a message of discouraging the use of brand-

name drugs.

Though the Second Circuits constitutional

analysis was correct, petitioners are correct that this

Courts review is warranted. The court of appeals

properly recognized that its decision conflicts with

the precedent of the First Circuit, which has upheld

similar measures enacted by New Hampshire and

Maine.

Review is also warranted because this case, inwhich the parties compiled an extensive evidentiary

record and the court of appeals has entered a final

judgment invalidating the statute, is an ideal vehicle

in which to decide the question presented and to

resolve the circuit conflict.

Finally, the importance of the question presented

is beyond dispute. Pharmaceutical marketing has a

significant impact on the public health. Further, the

governments power to ban the collection,

aggregation, and distribution of truthful informationis a recurring question with great significance for

virtually any commercial endeavor involving the

analysis and publication of factual information.

Certiorari accordingly should be granted.

I. The Second Circuit Correctly Concluded

That Vermonts Prescription Information

Law Violates The First Amendment.

The Second Circuit properly concluded that

Section 4631 is an unconstitutional restraint on

speech, and not, as Vermont argues, merely a control

on access to information. Under a uniform line of


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this Courts precedents, the transmission of truthfulfactual information is protected speech under the

First Amendment.1

A. Vermonts Prescription Information

Law Is A Restriction Of Protected

Speech.

1. Section 4631 restricts respondents

constitutionally protected speech in multiple

respects. The statute presumptively bans every link

in the chain of the communication of prescription-

history information for marketing purposes: thecommunication between pharmacies and the

Publisher Respondents, as well as the subsequent

communication of reports analyzing that data

between the Publisher Respondents and

1 While Section 4631 cannot satisfy even intermediate

scrutiny, respondents adhere to their position that the statute

should be subject to strict scrutiny because the speech it

prohibits is not merely commercial speech. InBoard of Trustees

of State University of New York v. Fox, 492 U.S. 469, 473-74

(1989), and City of Cincinnati v. Discovery Network, Inc., 507U.S. 410, 422 (1993), this Court held that the category of

commercial speech receiving lessened First Amendment

protection is limited to statements that propose a commercial

transaction. Because respondents speech goes well beyond

proposing a commercial sale, it falls outside that narrow

category.

Although the pharmaceutical companies are marketing

their products, Section 4631 is subject to strict scrutiny because

that commercial message is inextricably intertwined with

otherwise fully protected speech information regarding the

drugs merits. Riley v. Natl Fedn of the Blind of N.C., Inc. , 487

U.S. 781, 796 (1988). For that reason, this case would provide

the Court with the opportunity to revisit the broader questionwhether commercial speech should remain subject to lessened

First Amendment protection, or should instead be treated as

fully protected speech.


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pharmaceutical companies.Data miners do not themselves use [prescriber-

identifiable] data in their own marketing efforts.

Pet. App. 20a. Rather, the exchanges of information

prohibited by Vermont constitute speech protected by

the First Amendment. On Vermonts contrary view

that prescription-history information is merely data

unprotected by the First Amendment, the State is

free to prohibit the Wall Street Journal from

publishing stock prices.

The Second Circuit properly concluded that aprohibition on the distribution of factual information

is subject to First Amendment scrutiny. In Virginia

State Board of Pharmacy v. Virginia Consumer

Council, Inc., 425 U.S. 748 (1976), the Court held

that a ban on the advertising of prescription drug

prices violates the First Amendment. The Court

expressly rejected the states claim that the First

Amendment is inapplicable because the advertising

merely reports a fact: Purely factual matters of

public interest may claim [First Amendment]

protection, id. at 762, because it is indispensable to

the public interest that there be a free flow of

information as to who is producing and selling what

product, for what reason, and at what price, id. at

765. Cf. Lowe v. SEC, 472 U.S. 181, 210 (1985) ([t]o

the extent that the chart service contains factual

information about past transactions and market

trends, and the newsletters contain commentary on

general market conditions, there can be no doubt

about the protected character of the

communications).Further, the Vermont statute also bans

pharmaceutical companies from engaging in


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opportunity to discuss with each other how we treatpatients. A 196 (Wharton).

In Edenfield v. Fane, 507 U.S. 761 (1993), the

Court invalidated a ban on solicitation by certified

public accountants because it threaten[ed] societal

interests in broad access to complete and accurate

commercial information. Id. at 766. [T]he general

rule is that the speaker and the audience, not the

government, assess the value of the information

presented. Id. at 767. More recently, in Thompson

v. Western States Medical Center, 535 U.S. 357

(2002), the Court held that the government may not

prohibit pharmacists from advertising the

availability of compounded drugs. We have

previously rejected the notion that the Government

has an interest in preventing the dissemination of

truthful commercial information in order to prevent

members of the public from making bad decisions

with the information. Id. at 374. See, e.g., Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 564 (2001); 44

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489

(1996); Rubin v. Coors Brewing Co., 514 U.S. 476,481-82 (1995).

It is no answer to assert that Vermonts law is

targeted at the collection and use of prescription-

history information, and does not ban the

conversations between detailers and physicians. This

Court has repeatedly held that the First Amendment

forbids both direct and indirect restraints on the

activities that are necessary to the communication

and sharing of information the mechanics of

speaking. In Lorillard, supra, for example, the Courtgave no quarter to the claim that a regulation on the

placement of cigarette advertising merely regulated


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conduct, explaining that the First Amendment istriggered whenever regulation of conduct would

impose particularly onerous burdens on speech. 533

U.S. at 564. That decision simply echoed this Courts

repeated holdings that legislation regulating or

proscribing the actions necessary to engage in

communication triggers First Amendment scrutiny.

E.g., Minneapolis Star & Tribune Co. v. Minnesota

Commr of Revenue, 460 U.S. 575, 577, 592-93 (1983)

(First Amendment applies to use tax on the cost of

paper and ink products consumed in the production

of a publication).

2. For two reasons, there is no merit to

petitioners attempt (Pet. 18) to recast Section 4631

as merely a restriction on access to information.

First, the very purpose of the statute is to inhibit

speech, not to protect privacy or otherwise neutrally

protect the confidentiality of prescription-history

information. Petitioners are thus unwilling to

grapple with or indeed, even mention the

legislatures express intention to alter the

marketplace for ideas on medicine safety andeffectiveness. Vt. Acts No. 80, 1(6). The findings

expressly state the legislatures intent to interfere

with the marketplace of ideas to promote the

interests of the state. Pet. App. 12. Indeed, thewhole point of section 17 is to control detailerscommercial message to prescribers. Pet. App. 82a.

Second, the statute is not an effort by the

government to control the flow of information to

protect privacy. Because Vermont does not prohibit

the wide public dissemination of [prescriber-identifiable (PI)] data, the statute plainly does not


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protect physician privacy. Pet. App. 22a. As thecourt of appeals explained,

Physician privacy might be protected if the

statute prohibited the collection and aggregation

of PI data for any purpose, or if the use of such

data were permitted only in rare and compelling

circumstances. The statute at issue here,

however, does not forbid the collection of PI data

in the first instance. Furthermore, the statute

does not ban any use of the data other than for

marketing purposes, including widespread

publication to the general public.

Id.

For both of those reasons, the States analogy to

the attorney-client privilege, and restrictions on the

disclosure of information by [i]nsurance companies,

financial institutes, and even utility companies (Pet.

18-19) is deeply flawed, as is its invocation of statutes

involving information held by, for example, financial

institutions, educational records, and health care

information (id. 32). Unlike Vermonts law, thoselegal principles and statutes rest on a neutral

interest in preserving confidentiality, rather than

restricting speech. Further, each makes the

prohibition on disclosure the rule, not the exception

tied to a particular category of speech. See, e.g., 15

U.S.C. 6802 (providing right to opt out of financial

institutions disclosure of nonpublic personal

information to a nonaffiliated third party) (emphasis

added); 42 U.S.C. 1320d-6 (prohibiting the

disclosure of individually identifiable health

information to another person without authorization)(emphasis added); 47 U.S.C. 551(c)(1) (cable

operator shall take such actions as are necessary to


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18

prevent unauthorized access to such information by a person other than the subscriber or cable operator)

(emphasis added); Cal. Fin. Code 4052.5 (a

financial institution shall not sell, share, transfer, or

otherwise disclose nonpublic personal information to

or with any nonaffiliated third parties without

consent) (emphasis added). Vermont thus errs in

contending that the ruling below calls into question

the constitutionality of numerous federal and state

laws that protect information privacy (Pet. 1) or

otherwise conflicts with decisions upholding the

constitutionality of privacy protections (id. 16).

For the same reason, the State fails in its

attempted analogy to Seattle Times Co. v. Rhinehart,

467 U.S. 20, 32 (1984), which forbade the

dissemination of information obtained by [a]

newspaper through pretrial discovery, where the trial

court had entered a protective order (Pet. 19). The

information in Seattle Times was provided under

governmental compulsion a court order. It was

moreover kept private between the parties in order to

maintain privacy rather than inhibit speech. Section4631, by contrast, freely permits the distribution of

prescription-history information for purposes other

than marketing.

Equally important, the analogy to privacy laws

fails because, contrary to the States suggestion (Pet.

i), the data collected and analyzed by the Publisher

Respondents does not contain information about

patients. The States claim that the data reveals

substantial information about the doctor-patient

relationship including the treatment of individualpatients (Pet. 4-5) is false, to the extent that

Vermont hopes to suggest that respondents are in


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possession of any patient-identifying information. Infact, the Publisher Respondents never receive such

information, because pharmacy companies are

required to remove it before transferring the

prescription data. See 45 C.F.R. pts. 160 & 164; C.A.

App. A 221 (Tierney). Thus, as the district courts

and Judge Lipez recognized in the New Hampshire

and Maine cases, statutes of this type do nothing to

advance patient privacy. IMS Health Inc. v. Ayotte,

550 F.3d 42, 85 (1st Cir. 2008) (Lipez, J., concurring

and dissenting) ([T]he regulation does not in any

cognizable way touch on the privacy of theexamination room.); IMS Health Corp. v. Rowe, 532

F. Supp. 2d 153, 173 (D. Me. 2007) (Regardless of

the opt-out provisions of the new law, personal

patient information has been and will continue to be

encrypted and there is no evidence that the current

practices of the [Publisher Respondents] and the

pharmaceutical companies have had or realistically

could have any effect on patient confidentiality.);

IMS Health Inc. v. Ayotte, 490 F. Supp. 2d 163, 179

(D.N.H. 2007) ([A]lthough the Attorney General

asserts that prescriber-identifiable data is used to

intrude upon the doctor-patient relationship, she

does not claim that the data is being exploited to

compromise patient privacy.).

Nor is there merit to the States further

submission (Pet. 2) that Section 4631 escapes First

Amendment scrutiny because [n]either doctors nor

patients voluntarily provide information to

pharmacies but rather are required to provide

information to receive necessary health care

services. In fact, prescribers enter into relationshipswith their patients, and patients visit pharmacies,

none of which is compelled by the government. The


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20

pharmacies in turn collect prescription information inthe ordinary course of their business, and they

indisputably would continue to do so in the absence of

any governmental record-keeping requirement.

There is accordingly no merit to the States claim

(Pet. 31) that the First Circuit effectively conferred

upon respondents a constitutional right to receive

information. In fact, respondents have not claimed a

First Amendment right to obtain information. They

challenge the restriction on their ability to purchase

and use information otherwise available to them but

for the States restriction. The statute prevents

willing sellers and willing buyers from completing a

sale of information to be used for purposes that the

state disapproves. Pet. App. 16.

Thus, in this case, and unlike in LAPD v. United

Reporting Publishing Corp., 528 U.S. 32 (1999), the

information is not in the governments possession.

Rather, the State seeks to limit the acquisition and

use of information in the hands of pharmacies, data

miners, and pharmaceutical companies. This is a

case about the extent of the permissible

governmental regulation of information in the hands

of private actors. Pet. App. 17a. Contra Pet. 18-19.

Nor, finally, is Vermonts case materially

advanced by the fact that the statute permits

individual prescribers to formally advise the State

that they opt in to the use of their prescription-

history information in marketing. That requirement

presents a significant obstacle to respondents speech.

A state could not, absent a significant interest,

ordinarily require every audience to notify thegovernment in advance that it wants to receive

particular speech. Instead, the ordinary rule is that


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the audience can simply make the choice whether tolisten. In this context, every prescriber can choose

whether to receive detailing visits. Moreover, the

American Medical Association permits prescribers to

specify that their prescription-history information not

be used in marketing; the State has made no showing

that this non-governmental program is inadequate.

B. Vermonts Restriction On The Transfer

And Use Of Prescriber Information Does

Not Advance A Legitimate State

Interest.

Vermont does not make a serious attempt to

argue that its statutory scheme can survive First

Amendment scrutiny. The legislatures openly stated

rationale for enacting Section 4631 is its desire to

correct what it perceives as a massive imbalance in

information within the marketplace for ideas on

medicine safety and effectiveness. Vt. Acts No. 80,

1(4), 1(6). Thus, as the Second Circuit properly

recognized, the statute seeks to alter the

marketplace of ideas by taking out some truthful

information that the state thinks could be used too

effectively. Pet. App. 26a. Vermont is, quite

literally, attempting to make it more difficult for drug

companies and physicians to have an intelligent

conversation. This Court has specifically rejected the

assumption that doctors would prescribe

unnecessary medications on the basis of drug

advertising, because it amounts to a fear that people

would make bad decisions if given truthful

information. Western States, 535 U.S. at 359.

Beyond that, Vermonts effort to protectprescribers from truthful messages during voluntary

conversations with detailers does not advance any


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22

legitimate state interest. Indeed, if the governmenthas no cognizable interest in prohibiting

professionals such as accountants from soliciting lay

persons (Edenfield v. Fane, supra), then it manifestly

has no such interest in the context of pharmaceutical

companies discussions with highly trained

prescribers regarding the merits of particular drugs.

See Brief for Coalition for Healthcare Communication

as Amicus Curiae Supporting Petitioners at 16,

Ayotte, 129 S. Ct. 2864 (08-1202) (A paternalistic

desire to have consumers, let alone industry

professionals, make different market choices amonggoods and services is not the type of interest that can

sustain a restriction on truthful and non-misleading

commercial speech.). That is all the more true given

that physicians can and regularly do simply

decline to meet with a drug company representative.

Thus, in practice, Vermonts law bars only truthful

communications between drug companies and

knowledgeable and willing prescribers desirous of the

information.

Likewise, Vermonts avowed desire to correct theimbalance in information created by drug

companies financial wherewithal directly parallels

the premise repeatedly rejected by this Court that

the government may limit individual expenditures in

political campaigns. Under the First Amendment,

the government may not inhibit speech just because

it considers its influence to be economically outsized.

McConnell v. Fed. Election Commn, 540 U.S. 93, 217-

18 (2003); Fed. Election Commn v. Massachusetts

Citizens for Life, Inc., 479 U.S. 238, 263 (1986);

Buckley v. Valeo, 424 U.S. 1, 39-51 (1976).

The disconnect between Section 4631 and


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23

Vermonts legitimate interests is particularlyapparent given the lack of evidence of the need for

such legislation or its effectiveness. Before the

Second Circuit, Vermont sought to justify the statute

on the ground that it advanced a state interest in

medical privacy, which, the court noted, is actually

two distinct interests. The first is an interest in the

integrity of the prescribing process itself, and the

second is an interest in preserving patients trust in

their doctors by preventing patients from believing

that their physicians are inappropriately influenced

by . . . data-driven marketing. Pet. App. 23a. Thecourt correctly found no evidence suggesting that

Section 4631 advanced those interests. Vermonts

own expert was unaware of any instance in which a

detailing interaction caused a doctor to prescribe an

inappropriate medication. Id. And, [t]o the extent

that the record might suggest that [prescriber-

identifiable] data has damaged the relationship

between doctors and patients, the evidence is either

speculative or merely indicates that some doctors

might not approve of detailing or the use of

[prescriber-identifiable] data in detailing. Id.

Furthermore, even if Vermonts asserted

interests were legitimate, Section 4631 would still

fail First Amendment scrutiny because it

discriminates on the basis of the speakers viewpoint.

The statute bars the dissemination of prescription

information for the purpose of advocating the use of

brand-name drugs. At the same time, however, the

State has adopted its own counter detailing

program, which uses prescription-history data to

discourage brand-name drug use and promote the useof generics. Vt. Stat. Ann. tit. 18, 4622. Vermont

also permits insurance companies to use the same


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data to promote formulary compliance. Id. 4631(e)(1). Those companies routinely use

prescription-history information to locate prescribers

and encourage them to prescribe generics over brand-

name medications. C.A. App. A 188 (Kolassa)

([I]nsurance companies are using physician-

identifiable information to call physicians to try to

get them to comply with . . . formularies, [to] try to

get them to change their prescribing in a way that

may or may not be in the patients best interests.).

If the First Amendment means anything, it

means that the government cannot so significantly

disfavor the one side in a debate that it disfavors.

Vermonts statute creates a bias in the democratic

process designed to achieve the states desired result,

which is exactly the opposite of what the First

Amendment is intended to do. Brief for Pacific

Legal Foundation et al. asAmicus Curiae Supporting

Petitioners at 15, Ayotte, 129 S. Ct. 2864 (08-1202).

Even under the degree of scrutiny that we haveapplied in commercial speech cases, decisions that

select among speakers conveying virtually identicalmessages are in serious tension with the principlesundergirding the First Amendment. Greater NewOrleans Broad. Assn v. United States, 527 U.S. 173,

193-94 (1999).

C. Vermonts Law Is Not Narrowly

Tailored.

The Second Circuit also correctly held that

Section 4631 fails under Central Hudsons narrow

tailoring prong. Vermonts statute bears no

reasonable fit in relation to the States assertedinterests, see Greater New Orleans, 527 U.S. at 188

(1999), but in fact is grossly overinclusive.


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Far from confining its focus to detailing thatdrives up health care costs, Section 4631 applies to

detailing that either does not implicate or actually

furthers the States interests. The statute is not

limited to restricting those instances of detailing that

cause prescribers to make inappropriate prescribing

decisions. The States broad-brush assertion that

[n]ew drugs are also riskier, because their use,

risks, and side effects are not yet fully understood

(Pet. 9) is unsupported by the record and contrary to

the experience of modern health care. The statute

moreover equally applies when the detailingidentifies a less expensive alternative medication and

when it conveys valuable information about drug

treatments that improve public health, which is itself

a significant state interest. See Pet. App. 30a (The

statute prohibits the transmission or use of

[prescriber-identifiable] data for marketing purposes

for all prescription drugs regardless of any problem

with the drug or whether there is a generic

alternative.). In such instances, the statute inhibits

speech without furthering and often while

undermining Vermonts own claimed interests.

The Second Circuit also properly recognized that

Vermont had failed to meet its burden of showing

that its interests could not be as well served by a less

speech-restrictive alternative. One such option is

the States counter-detailing program, which is

designed to encourage doctors to prescribe generic

drugs. Alternatively, Vermont could mandate the

use of generic drugs as a first course of treatment,

absent a physicians determination otherwise, for all

those patients receiving Medicare Part D funds. Id.30a-31a. The State also could look to the array of

cost-containment measures in effect in other states


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that do not restrict speech, many of which Vermonthas not adopted.2

The statute is equally under-inclusive. Vermont

objects to the effectiveness of detailing visits, but

those communications are not prohibited so long as

they are not conducted on the basis of prescription-

history information. A drug company thus remains

free to promote expensive therapies for which generic

substitutes exist, or for which safety issues have been

raised.

In sum, the Second Circuit properly concludedthat Section 4631 violates the First Amendment,

even under the intermediate scrutiny applicable to

regulations of commercial speech.

II. Certiorari Is Nonetheless Warranted

Because the Ruling Below Directly Conflicts

With The Settled Precedent Of The First

Circuit.

The Second Circuit recognized that its decision is

irreconcilable with the precedent of the First Circuit,

2See, e.g., D.C. Code 48-831.04 (2006) (requiring use of

aggregate purchasing to negotiate lower prices of prescriber

drugs); Fla. Stat. Ann. 465.025 (2006) (requiring pharmacists

to substitute generic drugs for bioequivalent brand-name

drugs); N.H. Rev. Stat. Ann. 318:47-d (2003) (authorizing

pharmacists to substitute bioequivalent generic drugs); Me. Rev.

Stat. Ann. tit. 22, 2697 (2006) (prohibiting profiteering in

prescription drugs); Me. Rev. Stat. Ann. tit. 22, 2700-A (2006)

(providing for consumer education about prescription drugs);

Minn. Stat. 151.461 (1994) (prohibiting gifts from drug

manufacturers to health care practitioners); Vt. Stat. Ann. tit.

33, 2005a (2006) (requiring sales representatives to discloseprices to prescribers); W. Va. Code Ann. 5-16C-9 (2006)

(setting forth a variety of strategies to reduce unnecessary

prescription drug costs).


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27

which has upheld similar statutes on the theory thatprescription-history information merits little, if any,

First Amendment protection. That conflict on an

important question of federal constitutional law is

entrenched and can be resolved only by this Court.

1. The Second Circuit in this case expressly

rejected the contrary precedent of the First Circuit.

The Second Circuit concluded that Vermonts statute

must be subject to significant constitutional scrutiny

because it is . . . clearly aimed at influencing the

supply of information, a core First Amendment

concern. Pet. App. 16a. The Second Circuit also

rejected Vermonts reliance on the First Circuits

conclusion that a State could permission pursue an

interest in altering the imbalance in information

available to prescribers by put[ting] the states

thumb on the scales of the marketplace of ideas. Id.

25a.

Like Vermonts Section 4631, the New

Hampshire statute sustained by the First Circuit in

Ayotte prohibited the transfer or use of prescription

data for the purpose of any activity that could be

used to influence sales or market share of a

pharmaceutical product. N.H. Rev. Stat. 318:47-f.

While the Ayotte court acknowledged that the

dissemination of factual information has been held

protected by the First Amendment, it deemed that

principle inapplicable in a situation in which

information itself has become a commodity. Ayotte,

550 F.3d at 53. In that circumstance, the First

Circuit concluded, the transfer of information is

entitled to no greater First Amendment protectionthan a shipment of, say, beef jerky. Id.

On the basis of Ayotte, the First Circuit


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subsequently upheld Maines similar prescriptioninformation law. IMS Health Inc. v. Mills, 616 F.3d

7, 19 (1st Cir. 2010). The Maine statute provides

that pharmacies, data publishers, and others may not

use or sell prescriber-identifiable information for

any marketing purpose if a prescriber so elects. Me.

Rev. Stat. Ann. tit. 22, 1711-E(2-A).

In conflict with the Second Circuits decision in

this case, the First Circuit held in Ayotte that New

Hampshire was free to level the playing field in the

debate over the benefits of brand-name medications

by limiting drug companies access to information,

and thereby improve the quality of the discussions

between detailers and physicians. 550 F.3d at 48, 54.

The Second Circuit also conducted a

substantially more searching assessment of whether

the State had a factual basis for adopting its

prescription restraint law. Looking to the record

developed at trial, the court of appeals in this case

found that Vermont has not shown any effect on the

integrity of the prescribing process or the trust

patients have in their doctors from the use of

[prescriber-identifiable] data in marketing. Pet.

App. 23a. Although the State presented some

testimony at trial that sought to show that less

speech-restrictive alternatives would not sufficiently

advance its asserted interests, the court found that

the testimony fell far short of demonstrating that

the alternatives would be inadequate. Id. 33a.

Further, the court noted that although the statute

bars the use of prescriber data to market any brand-

name prescription drug, the State provided noevidence about whether particular brand-name

medications are more or less effective than their


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29

generic counterparts. Thus, [e]ven if the Courtdefers to the legislatures determinations, those

determinations cannot support banning speech in

circumstances that the states evidence does not

address. Id. 30a.

In stark contrast, the First Circuit held that New

Hampshires parallel statute sufficiently advanced

the States asserted interests, notwithstanding that

there was no direct evidence on the statutes effect

on health care costs. Ayotte, 550 F.3d at 57. Despite

those deficiencies, the First Circuit concluded that

this is more a matter of policy than of prediction, id.

at 58, so that the appropriate course was to defer to

the New Hampshire legislature, id. at 59. In the

First Circuits view, [a] state need not go beyond the

demands of common sense to show that a statute

promises directly to advance an identified

governmental interest. Id. at 55. The First Circuit

deems intermediate scrutiny to be satisfied when a

state relies on common sense to show that a statute

promises to advance such interests. Id. at 55.

The First Circuit denied applications for

rehearing en banc in both Ayotte and Mills. The

court of appeals ruling in Mills moreover eliminated

any prospect that the court might revisit its prior

precedent in light of this Courts intervening decision

in United States v. Stevens, 130 S. Ct. 1577 (2010).

Mills squarely reject[ed] the contention that

Stevens undermines Ayottes holding. Mills, 616

F.3d at 20. While acknowledging that Ayotte did

suggest that any speech regulated was of such

minimal value that it likely fell outside of First Amendment protections, the First Circuit believed

that statement was consistent with Stevens because


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30

it was in service ofAyottes holding that the NewHampshire statute regulated conduct, not speech, an

argument not at issue in Stevens. Id.

Nor is there any prospect that the Second Circuit

will resolve the conflict through en banc proceedings.

That court has a nearly inviolate practice of reserving

en banc review to intra-circuit conflicts. See

generally Jon O. Newman, In Banc Practice in the

Second Circuit: The Virtues of Restraint, 50 Brook. L.

Rev. 365 (1984). The State of Vermont accordingly

made the sound judgment to seek review directly in

this Court. Equally important, because no other

state in the Second Circuit has adopted a similar

statutory scheme, the court of appeals will never

again have the opportunity to decide the question

presented.

The current state of the law is particularly

intolerable given that the Publisher Respondents are

the plaintiffs in all three of the federal appellate

rulings that make up the circuit conflict over the

constitutionality of prescription-restraint statutes.

The Publisher Respondents now face irreconcilable

legal obligations, on the basis of conflicting

interpretations of the First Amendment, depending

entirely on the particular state to which specific data

happens to relate.

Further, the conflict has significant practical

consequences, as it materially and unjustifiably

interferes with respondents daily operations. The

Publisher Respondents operate data centers that

collect, aggregate, and publish information on a

national and international basis. Differentiatingamong states to account for the inconsistent legal

regimes that now exist requires a significant


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31

expenditure of resources. Equally important, theforced exclusion of data relating to certain states in

analyses of nationwide prescribing behavior creates

material administrative difficulties and threatens the

accuracy of the data respondents publish.

III. This Case Is An Ideal Vehicle To Decide The

Question Presented, Which Is Profoundly

Important.

Certiorari is further warranted because the

record in this case makes it an ideal vehicle in which

to resolve the constitutional question it presents.The district court conducted a five-day bench trial,

during which the parties presented extensive

documentary and testimonial evidence regarding the

operation of statutory schemes like the one at issue.

See Pet. App. 78a (The parties presented testimony

from numerous witnesses and introduced reams of

exhibits, including the entire legislative history of Act

80.). Particularly in a case in which a statutory

scheme rests on supposed effects of pharmaceutical

marketing upon prescribing behavior, it is essential

that the Court have the benefit of a concrete factual

record.

Review in this case is also proper because the

Vermont statutory scheme is representative of the

other legislative efforts to restrict the use of

prescriber information for marketing purposes.

Section 4631 operates in substantially the same

manner as the prescriber data laws in New

Hampshire and Maine, both of which prohibit the

transfer and use of such information for marketing

purposes. See N.H. Rev. Stat. 318:47-f (prescriber-identifiable information shall not be licensed,

transferred, used, or sold by any pharmacy benefits


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32

manager, insurance company, electronictransmission intermediary, retail, mail order, or

Internet pharmacy or other similar entity, for any

commercial purpose); Me. Rev. Stat. Ann. tit. 22,

1711-E(2-A) (a carrier, pharmacy or prescription

drug information intermediary may not license, use,

sell, transfer or exchange for value prescriber

information for any marketing purpose). Accord

Pet. 26 (The same concerns that led Vermont, New

Hampshire, and Maine to enact restrictions on the

commercial use of prescriber-identifiable data have

prompted state legislators across the country toconsider similar measures.). Thus, this case gives

the Court an ideal opportunity to provide guidance on

the constitutional issues common to all of these

statutory schemes, similar versions of which have

been introduced for consideration in the legislatures

of more than half the states.

Finally, this case presents issues of surpassing

importance. The record demonstrates that

pharmaceutical marketing provides substantial

public health benefits. Detailing directly contributesto prescribers awareness of new treatment options,

and in turn helps to educate pharmaceutical

companies about prescribers experiences with

particular medications. That interchange of

information facilitates the adoption of vital new

treatments for a wide range of medical conditions,

and in turn immeasurably benefits the health and

well being of the Nation. The efforts of Vermont and

other States to interfere with that process trigger

public health concerns of the highest order. See C.A.

App. A 284 (Frankel) (Vermonts law will slow thedissemination of new drugs and . . . people will die);

Brief for Council of American Survey Research Orgs.


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33

et al. as Amici Curiae Supporting Petitioners at 2,Ayotte, 129 S. Ct. 2864 (08-1202) (prescriber

information restrictions threaten legitimate

pharmaceutical survey research by eliminating a

valuable information and data resource.).

Moreover, the implications of Vermonts

constitutional position extend far beyond drug

marketing. The evaluation and publication of factual

information is one of the top ten emerging fields in

todays technological world. Tal J. Zarsky, Mine

Your Own Business!: Making the Case for the

Implications of the Data Mining of Personal

Information in the Forum of Public Opinion, 5 Yale J.

L. & Tech. 4 (2003). This speech has entered a

golden age, whether being used to set ad prices, find

new drugs more quickly or fine-tune financial

models. Ashlee Vance, Data Analysts Are

Mesmerized by the Power of Program R, N.Y. Times,

Jan. 7, 2009, at B6. In the information-based

economy of the twenty-first century, the

accumulation, analysis, and distribution of various

forms of data is an activity of vital importance to abroad and growing range of commercial enterprises.

See Brief for New England Legal Foundation et al. as

Amici Curiae Supporting Petitioners at 22, Ayotte,

129 S. Ct. 2864 (08-1202) (In our information age,

sales and other voluntary transfers of data by and

between businesses are fundamental to the efficient

operation of the free enterprise system and often

serve, as in this instance, societal needs as well as

the interests of individual businesses.). The

proposition that such communications are wholly

devoid of constitutional protection, such that theymay be prohibited wholesale any time the

government disagrees with choices made by


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34

consumers of that information, raises far-reachingconstitutional concerns that warrant this Courts

prompt attention and guidance.


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CONCLUSIONFor the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Thomas R. Julin

Jamie Z. Isani

Patricia Acosta

HUNTON &WILLIAMS LLP

1111 Brickell AvenueSuite 2500

Miami, FL 33131

Mark A. Ash

MCGUIRE WOODS LLP

2600Two Hanover

Square

Raleigh, NC 27601

Thomas C. GoldsteinCounsel of Record

Kevin R. AmerAKIN GUMP STRAUSS HAUER&FELD LLP1333 New Hampshire

Avenue, N.W.Washington, DC 20036(202) 887-4000

[email protected]

Robert B. Hemley

Matthew B. Byrne

GRAVEL AND SHEA

76 St. Paul Street, 7th Fl.

Burlington, VT 05402

December 15, 2010

ims response to vermont cert petition dec 10

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